As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
Irene Grootboom died last week, but we hardly noticed as we were all too busy obsessing about yet another court appearance of Mr. Jacob Zuma. She died homeless and penniless, not yet fifty years old, in the same week that robbers broke into the garage of ANC Youth League President Julius Malema’s upmarket home in Sandton and stole stuff from his C-Class Mercedes.
The ANC Youth League did not have time to issue a press statement about the death of Mrs. Grootboom. They were too upset about the break-in at the fancy house of Mr. Malema. Breaking into a C-Class Mercedes is apparently not a revolutionary act – especially if that C-class belongs to Comrade kortbroek Malema. Thus the Youth League did have time to pontificate on this break-in: who cares about a poor and destitute woman who made legal history if there is a revolution to be fought and a man of dubious ethical standards to be defended. The Youth League statement reads in part:
We hold a firm view that this dastardly act of cowardice is the work of desperate forces who believe they can intimidate us into submission. It is a sad day in our country to realise that we still have apartheid-style tactics where one’s residence is ransacked with impunity. We dare these forces of darkness to confront us openly in broad daylight. The Youth League condemns this act of cowardice in the strongest possible terms. An attack on leaders of the ANCYL is an attack on the ANCYL itself.
For me this juxtaposition seems to sum up much of what is wrong in South Africa (and with the ANC and the debate about Jacob Zuma) in 2008. Mrs. Grootboom made legal history when the Constitutional Court (those pesky counter-revolutionaries!) delivered judgment in a groundbreaking case that carried her name, giving some content to the right of access to housing guaranteed in article 26 of the Constitution.
Eight years ago the Constitutional Court ruled in Grootboom’s favour, saying that she and others living in an informal settlement on Wallacedene sports ground near Kraaifontein had a right to demand from the state to act reasonably to provide access to housing to all South Africans by devising and implementing a housing policy that did not neglect the most poor and vulnerable members of society.
Because the state’s housing policy did not cater at all for homeless people – those in urgent need – the Court declared the state’s housing policy to be unreasonable and thus invalid. But because it was careful to respect the separation of powers and because it feared that it did not have the institutional competence to dictate to the state exactly how it had to act to progressively provide more and more South Africans with better and better access to housing, the Constitutional Court found that Mrs. Grootboom could not demand a house from the state. She could only demand that the state act reasonably to implement a housing policy.
Implicit in the Court’s judgment was an assumption that the state really cared about people like Mrs. Grootboom and that, given some guidance, the government would eventually address the needs of Mrs. Grootboom and others like her. It assumed that the members of government would not spend its time fighting about positions and power, but would really try to help people like Mrs. Grootboom who had placed their names on housing waiting lists many years before in the hope of accessing housing.
Eight years later this assumption seems rather optimistic, to say the least. As the disastrous anti-poor N2 Gateway project has shown, the government often seems more concerned about what Sep Blatter and rich overseas visitors might think as they drive from the airport to the new R300 million 2010 soccer stadium, than what is best for the poor and homeless citizens of South Africa.
And aided and abetted by “revolutionary” judges like Judge President John Hlophe, the state’s housing policy now often seems to consist of attempts at removing destitute citizens from prime land close to job opportunities near city centres to far-away townships in order to make way for middle income houses for people with the necessary ANC connections to jump to the front of a housing queue.
Although many houses have been built by our government and many people provided with access to housing, the needs of the really poor and destitute – like Mrs. Irene Grootboom – still do not seem to be a priority for politicians who drive around in fancy cars and live in leafy suburbs among the despicable white racists they so enjoy to deride and whom they need to give legitimacy to their (mis)rule.
Mrs. Irene Grootboom was a true revolutionary. She put her trust in the law, our courts and in politicians to help her to get access to a house. But true revolutionaries hardly ever live happily ever after. Unlike the fake revolutionaries who steal our money and spew populist platitudes masquerading as concern for the people, true revolutionaries often die young, penniless and homeless.
Mrs. Grootboom’s death shames us all. Is it too much to ask that her death might galvanize us into re-focusing our attention on the real pressing problems facing South Africa – on poverty and the lack of opportunities facing many people like Mrs. Grootboom who do not know and could not care less about Jacob Zuma or Julius Malema or anyone else driving a Mercedes (or a Porsche)?
Naaah, I am obviously being naive. Who would care about a poor destitute woman when one has so much more important things to do – like getting into one’s C-Class Mercedes to go and give another revolutionary speech about how one would kill or die for a man who took more than R4 million in bribes from a convicted crook.
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